The role of mercy and sentencing for infanticide: the tragic case of R v Guode

Abstract

ABSTRACT The unimaginable circumstances that would drive a woman to kill her child will often justify a more lenient or ‘merciful’ response. However, there is a risk that the use of ‘mercy’ suggests a sentence that is otherwise unjust and has been reduced without reference to sentencing principles. Using the recent high-profile Victorian case of R v Guode, this article examines the notion of mercy in cases of infanticide. It is argued that references to mercy as a sentencing principle should be avoided, and are more appropriately described as mitigating factors justifying a more lenient, but just, punishment. Despite this, sentencing decisions are a form of communication, primarily to the offender, but also to the wider community. In this regard, the use of the word ‘mercy’ may be considered as an important value statement. It is therefore argued that ‘mercy’ should be used, if at all, as a way of communicating the rationale for what might otherwise appear to the public as an unduly lenient sentence for the murder of a child.